This judgment is in relation to two Class 1 proceedings: Appeal No 17/63578 in relation to a subdivision proposal and Appeal No 17/211667 in relation to a proposal to construct a three storey dwelling and an associated driveway. Both proceedings were the subject of a judgment given by Commissioner Dixon (as she then was) on 1 December 2017, being June Morgan v Lane Cove Council [2017] NSWLEC 1687.
It is convenient to provide a brief summary of the proposals in the proceedings before the Commissioner by simply quoting from paragraphs [1]-[8], omitting parts that are unnecessary for present purposes.
The applicant, June Morgan, lodged two development applications with the Lane Cove Council in respect of her property at 7 Dettmann Avenue, Longueville ('the site'):
Development application number (DA 170/2016) sought consent for the subdivision of the site into two (2) Torrens title allotments. Lot 1 fronts Dettmann Avenue and is 654 m2. Lot 2 adjoins the foreshore to Tambourine Bay and is 917 m² including a 3m wide access handle off Dettmann Avenue; and
Development application number (DA 213/20166) sought consent for the construction of a three storey dwelling and access driveway on Lot 2.
The Council … refused development consent to the applications and the applicant … exercised, in each case, her right of appeal to the Court under s 97 (now s 8.7) of the Environmental Planning and Assessment Act 1979 ('EPA Act'). The proceedings were heard together pursuant to s 34AA of the Land and Environment Court Act 1979 ('the Court Act').
The site is located on the lower western side of Dettmann Avenue and is a foreshore property of Tambourine Bay. The land falls steeply approximately 20m from the street to the water. There is a depression in the topography toward the rear half of the site that is a remnant of sandstone quarrying that occurred during the 1930s. The Warraroon Reserve is located to the north of the site and is identified as bushland under State Environmental Planning Policy 19 - Bushland in Urban Area.
….
The Lane Cove Local Environmental Plan 2009 ('LEP') identifies the site as zoned R2 Low Density Residential with the rear portion of the land (approximately 412m2) zoned E2 Environmental Conservation zone (Map LZN _002) and Environmental Protection Land (Map CL1 _002). The rear portion is also identified as Coastal Wetlands and identified as a Proximity Area for Coastal Wetlands in the Draft Coastal Management State Environmental Planning Policy Map entitled The Coastal Wetlands and Littoral Rainforests Area Map.
Development for the purpose of a "dwelling" is permitted with consent within the R2 zone but prohibited in the E2 zone.
The site is rectangular in shape and has a total land area of 1571 m². The width of the site is 18.29 m and the depth is 88.43 m along the northern boundary and 83.36m along the southern boundary. The subdivision will create a battle axe allotment behind the parent lot with an access handle running along the southern boundary.
The proposed dwelling is to be located on the flat area on Lot 2 below the terrace and forward of the E2 land
The Commissioner determined to uphold the Applicant's appeals and did so with the following words at [61]: "After careful consideration of the evidence of the experts and the objectors it is my considered opinion that there is no planning basis to refuse the applications after assessment under s 79C of the EPA Act. The developments are permissible and comply with the current numerical requirements of the LEP and the relevant zone objectives". The Commissioner then ordered that each application be approved subject to "the conditions in Exhibit 8 as amended by this judgment".
Since the date of the judgment there arose a need to make a minor amendment to the judgment, being the correction of a typographical error in a BASIX certificate number. That amendment was effected by order made in chambers by the Senior Commissioner on 1 March 2018 pursuant to the "slip rule" under r 36.17 of the Uniform Civil Procedure Rules 2005 (UCPR). Subsequent to that amendment, issues have arisen between the parties as to whether other changes have or have not been made to the judgment. Those issues are yet to be examined and resolved.
[2]
Referral by Registrar to the Court
This matter, comprising the two proceedings, was listed before me at 2.00pm 16 April 2018 pursuant to a direction of the Registrar made earlier that day. Division 4 of Pt 49 of the UCPR empowers a registrar to, on his or her motion or on application by a party, refer any proceedings before that registrar to the Court: r 49.16. If a registrar does so, the Court may hear and determine any matter in the proceedings that was before that registrar: r 49.18(a).
The issue that precipitated the Registrar's referral pursuant to r 49.16 was the concern that was expressed by the Applicant with the Registrar's orders made Friday 13 April 2018 which, inter alia, directed that the two proceedings be relisted before Senior Commissioner Dixon (as she now is) on 9 May 2018. The Registrar had directed that the two proceedings be relisted before the Senior Commissioner in order to have the Commissioner resolve various contentions that had arisen with respect to her final orders in the judgment of 1 December 2017 (as subsequently amended) (Commissioner's Final Orders).
The Applicant, concerned that the Registrar's orders unnecessarily delayed the resolution of competing contentions regarding the Commissioner's Final Orders, had filed a Notice of Motion headed "Notice of Motion + Application for URGENT HEARING". This Notice of Motion was filed 16 April 2018. The Applicant's Notice of Motion was supported by an affidavit sworn by the Applicant dated 16 April 2018. There were ten annexures to that affidavit.
As a consequence of the Registrar's referral to the Court, in the context of the Applicant's Notice of Motion, the primary issue before the Court was whether the Registrar's order listing the proceedings before the Senior Commissioner on 9 May 2018 was appropriate.
[3]
Chronology
To understand this matter it is helpful to set out a chronology of the formal steps in the proceedings to date.
19 September 2017 Hearing before Commissioner Dixon.
1 December 2017 Judgment of Commissioner delivered.
1 March 2018 Order of Senior Commissioner Dixon made in chambers pursuant to UCPR 36.70 (slip rule) amending her judgment.
3 April 2018 Order of Registrar made in chambers listing the matter for directions before her.
13 April 2018 Orders of Registrar, inter alia, directing proceedings to be listed before the Senior Commissioner on 9 May 2018
16 April 2018 Applicant files Notice of Motion
16 April 2018 Orders by Registrar ex parte, confirming orders made 13 April 2018, then referral to Molesworth AJ pursuant to UCPR r 49.16
[4]
Consideration
In my judgment in Malek v Woollahra Municipal Council [2017] NSWLEC 124, I set out the procedures in relation to the review of decisions of the Registrar of the Court at [12]-[15]:
12. Division 4 of Part 49 of the Uniform Civil Procedure Rules 2005 ('the Procedure Rules') provides for the review of decisions of registrars. The power of the Court to review a registrar's direction, order or decision, on the application of a party, is set out under rule 49.19 in the following terms:
If in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit.
13. The process for making an application to review a registrar's decision is delineated under rule 49.20 as follows:
(1) An application for review of a decision of a registrar is to be instituted by filing a notice of motion.
(2) The notice of motion must be filed within 28 days after the material date.
(3) The registrar may extend time under subrule (2) within 28 days after the material date, or on a notice of motion filed within 28 days after the material date, and not otherwise.
(4) The court may extend time under subrule (2) at any time.
(5) For the purposes of this rule, the material date is the date of the direction, certificate, order, decision or other act to be reviewed....
14. Additionally, Division 4 of Part 49 also empowers a registrar to, on his or her motion or on application by a party, refer any proceedings before that registrar to the Court: r 49.16. If a registrar does so, the Court may hear and determine any matter in the proceedings that was before that registrar: r 49.18(a).
15. It is also convenient to note here that there are various decisions which set out the applicable principles for reviewing a registrar's direction, order or decision: see, eg, Groeneveld v Wollongong City Council (2009) 168 LGERA 260; [2009] NSWLEC 149 and Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369. These decisions are specifically applicable to reviews of a registrar's decision brought by a party in accordance with rule 49.19, but may not be prescriptively apposite with respect to a referral of a motion by a registrar pursuant to rule 49.16. Nevertheless, with a degree of greater flexibility, these decisions remain instructive in circumstances where a registrar's referral may involve a re-visiting of the subject matter of an earlier decision of a registrar.
For completeness, I confirm that the UCPR apply to the Land and Environment Court in, inter alia, Class 1 proceedings by virtue of Sch 1 of the UCPR and, specifically, Div 4 Pt 49 has not been excluded from the jurisdiction of the Court.
It is apparent on the face of the Applicant's Notice of Motion filed 16 April 2018 that her intent was to apply for an urgent hearing seeking "urgent relief", conveying a clear inference that she was dissatisfied with the Registrar's order made the previous Friday, 13 April 2018, directing that the proceedings be relisted before the Senior Commissioner on 9 May. However, a focussed Notice of Motion actually stating that the Applicant was seeking to review the Registrar's listing decision was not filed in compliance with r 49.20 of the UCPR. Rather, the Applicant's Notice of Motion seeks redress with respect to other matters, specifically a review of administrative amendment or amendments which may or may not have been made to the Commissioner's orders since her original orders contained in her judgment of 1 December 2017.
Accordingly, as stated earlier, the proceedings came before me, not pursuant to the Applicant's Notice of Motion, but rather pursuant to a direction of the Registrar made in accordance with Div 4 of Pt 49 of the UCPR on the Registrar's own motion referring, pursuant to r 49.16, that aspect of the proceedings that was before the Registrar being the listing, and timing of that listing, before the Senior Commissioner. Therefore the issue referred to me by the Registrar was whether her referral of the proceedings back to the Senior Commissioner was appropriate and, in the light of the Applicant's request for an urgent hearing, whether the time frame was appropriate, to wit, a hearing listed on 9 May 2018. In that context, the Court may hear and determine those issues in the proceedings that were before that registrar: r 49.18(a).
In the course of the hearing it became apparent to the Court that, between the Applicant and Dr Smith, who appeared as counsel for the Respondent Council, there was a significant difference in understanding or recollection as to what had taken place before (then) Commissioner Dixon during the hearing on 19 September 2017. The issue in contention focussed on the conditions of development consent, in particular an Exhibit 8, containing conditions had been proposed, in draft, by the Respondent Council. The Commissioner's final orders granting development consent in both proceedings, as set out in her 1 December 2017 judgment, referred to as "Exhibit 8".
The issue that has arisen since the Commissioner's judgment was whether the original Exhibit 8 was a single document setting out one set of composite conditions (as submitted by the Applicant). Alternatively, whether Exhibit 8 contained two parts: a Part A and a Part B, with one part relating to the proposed subdivision and one part relating to the proposed house (as submitted by Dr Smith). A third alternative, was that although it may have been intended that Exhibit 8 was to contain two parts, the actual document handed to the Commissioner and the Applicant's then legal representatives, which thereafter actually became Exhibit 8 as marked by the Commissioner, suffered from an inadvertent omission of one of the parts (specifically that which has been subsequently identified as Part A).
As Annexure J to Ms Morgan's affidavit (identified in paragraph 22 of the affidavit as attachment 10) there is a letter dated 10 April 2018 from Tomaras Lawyers, who had been the Applicant's solicitors at the time of the hearing before the Commissioner, which relevantly states:
"Neither our office nor Mr Fraser [the Applicant's counsel who appeared before the Commissioner] have any recollection of having received or seen at any stage prior to your email of 6 March 2016 the dwelling house conditions referred to in that email. There are a number of conditions of the dwelling house conditions that we would have opposed or sought changes to. [Conditions are then listed] Some of the conditions are clearly ones which the Commissioner would never have accepted had there been argument on them, some are inconsistent with findings in the judgment or otherwise patently unnecessary or unjustified in their terms".
Dr Smith advised the Court that a transcript of the hearing before the Commissioner had been ordered and that may clarify what actually occurred. Forming the view that the transcript was likely to assist in an understanding of the contentions regarding the original Exhibit 8, the Court stated that it was inappropriate to proceed further, but rather to adjourn the proceedings till the end of the week, so the transcript could be produced to the Court and the parties. The Court, expressing the view that the Respondent Council's position needs to be clearly explained in the context of the transcript and the chronology of communications since the Commissioner's judgment, then ordered the Respondent Council to file any affidavit upon which it wishes to rely by 1.00pm on Thursday, 19 April 2018. The proceedings were then adjourned to 12.00 noon on Friday, 20 April 2018.
On the afternoon of 17 April 2018 the solicitors for the Respondent Council provided to the Court a copy of the transcript of the proceedings before the Commissioner. It has been noted that p 12 of the Transcript, lines [14]-[32] relate to the handing up to the Commissioner of the document that became Exhibit 8.
In compliance with the Court's orders, an affidavit of Katherine Anne McLellan, sworn 19 April 2018 was filed with the Court that day at 11.53am. That affidavit confirms that Ms McLellan has had the care and conduct of this matter on behalf of the Respondent Council since the commencement of the proceedings in the Court.
In the context of the competing contentions of the parties with respect to the Senior Commissioner's final orders and the events which have transpired since which may or may not have constituted alterations to those orders, I have reached the conclusion that the person most capable of confirming the factual position with respect to her orders is the Senior Commissioner herself. Accordingly, I am of the opinion that the Registrar was correct, when she made her decision on 13 April 2018, that the proceedings ought be relisted before the Senior Commissioner.
Further, I have concluded that the date of 9 May 2018, on which the proceedings have been relisted before the Senior Commissioner, is not too distant to be inappropriate. Despite the Applicant pressing for an earlier date to have the issues in contention ventilated and then resolved, "urgently" as she put it in her Motion and in her submissions before me, I see no reason to expedite that hearing. In order to justify expedition I would need to be satisfied that there is a "pressing need" for the matter to be heard earlier. In adopting that shorthand reference to the considerations relevant to an expedition application, I am mindful of the principles in Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 at [42]-[43] which I most recently analysed and followed in my judgment in TC (Tallwoods) Pty Ltd v Liverpool City Council [2018] NSWLEC 48.
In the course of the hearing before me I inquired of the Applicant whether there was any particular harm or inconvenience that would be suffered by her should the resolution of the issues in contention have to await the hearing before the Senior Commissioner on 9 May 2018. The Applicant responded that she had suffered the delay of many months since the date of the judgment and, most particularly, since the issues arose after the 1 March 2018 when the Senior Commissioner made the amendment to her judgment pursuant to the slip rule.
I pressed the Applicant whether it was so that, for instance, construction workers were retained and waiting at the ready to immediately start work. The Applicant did not confirm such a scenario, rather repeating her concern about the inconvenience to date. Consequently, I have concluded that there are no particular imminent circumstances that would warrant an order for expedition to bring the matter forward from 9 May 2018.
Accordingly, I confirm that it was appropriate for the Registrar to make the decision she did in selecting the 9 May 2018 for the proceedings to return to the Senior Commissioner.
Finally, I note that the determinations I have made in this judgment are restricted to those issues arising from the referral to me by the Registrar pursuant to r 49.16 of the UCPR. I have not commenced a hearing with respect to the Applicant's Notice of Motion, having only made interlocutory case management orders with respect to the provision of the transcript and the filing of an affidavit upon which the Respondent Council may wish to rely.
[5]
Orders
The Court orders that:
1. The Registrar's directions of 13 April 2018 that the proceedings be listed before Senior Commissioner Dixon on Wednesday 9 May 2018 stand.
2. The Applicant's Notice of Motion filed 16 April 2018 be concurrently heard by the Senior Commissioner on 9 May 2018.
3. There be no order for costs with respect to the hearings before me.
4. (Note: Order 2 is made on the basis that after the Senior Commissioner hears submissions from the parties and thereby ascertains the parameters of the issues in contention, she will need to determine whether she has jurisdiction to determine the issues so identified).
[6]
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Decision last updated: 23 April 2018